Excerpt:.....be accepted as secondary evidence under section 65 - criminal misconduct under section 5 was amalgamation of bribe plus habitually doing so - in present case three completed offences committed within twelve months and no prejudice against respondent - court set aside order passed by court below on ground that finding was wrong - matter remanded to fresh disposal on merits. - - 4 cannot be accepted as a secondary evidence of the previous sanction of the general manager of the south indian railway, and now the general manager of the southern railway, and secondly that when the charge was for criminal misconduct under section 5(2), prevention of corruption act and the trial court found that two of the counts had not been satisfactorily proved and the charge of criminal misconduct..........undergo rigorous imprisonment for a period of six months.3. there was an appeal therefrom and the learned sessions judge, coimbatore, did not go into the merits of the case but acquitted the accused on two short grounds, viz., that firstly ex. p. 4 cannot be accepted as a secondary evidence of the previous sanction of the general manager of the south indian railway, and now the general manager of the southern railway, and secondly that when the charge was for criminal misconduct under section 5(2), prevention of corruption act and the trial court found that two of the counts had not been satisfactorily proved and the charge of criminal misconduct failed, resultantly the accused could not be convicted on the count 'proved under section 161, i.p.c. but must have been acquitted in.....

Judgment:

Ramaswami, J.

1. This is an appeal preferred by the State against the acquittal by the learned Sessions Judge, Coimbatore in C. A. No. 69 of 1951, reversing the conviction and sentence of the Assistant Sessions Judge, Coimbatore, in S. C. No. 55 of 1951.

2. The facts are : The respondent G. Sadagopan was the Head Clerk of the District Engineer's Office, Podanoor, south Indian Railway, On information received that this Sadagopan was a bribe-taker, investigation was started by the Special Police Establishment, Madras. It is enough for the purpose of this case that this Special police Establishment, Madras, unearthed 3 instances against him, viz., that he accepted on 1-5-1950 at Podanur Rs. 30/- from K. Rajgopal for transferring him from Udumalpet; accepted in January 1950 Bs. 25/- from Swami for giving a permanent vacancy and demanded in or about November 1949 from Sri Narasimhain at Podanur 30 per cent, of the travelling allowance bills for passing the same, on the foot that each of these accusations which constituted an offence under Section 161, I.P.C. amalgamated together made up the offence of criminal misconduct punishable under Section 5(2), Prevention of Corruption Act, this accused was tried before the learned Assistant Sessions Judge on these instances of bribe-taking, constituting an offence under Section 5(2), Prevention of Corruption Act read with Section 161, I.P.C. The learned Assistant Sessions Judge, who carefully went into the matter found that the prosecution had affirmatively and satisfactorily proved beyond doubt the accusation relating to the acceptance of a bribe of Rs. 30/- from Rajagopal (P. W. 1) on 1-5-1950 for transferring him to Podanur and that in regard to the other two counts, held that he was not inclined to hold that the prosecution had so established the accused's guilt. Therefore, he convicted the accused for the offence proved under Section 161, I.P.C. and sentenced him to undergo rigorous imprisonment for a period of six months.

3. There was an appeal therefrom and the learned Sessions Judge, Coimbatore, did not go into the merits of the case but acquitted the accused on two short grounds, viz., that firstly Ex. P. 4 cannot be accepted as a secondary evidence of the previous sanction of the General Manager of the south Indian Railway, and now the General Manager of the Southern Railway, and secondly that when the charge was for criminal misconduct under Section 5(2), Prevention of Corruption Act and the trial Court found that two of the counts had not been satisfactorily proved and the charge of criminal misconduct failed, resultantly the accused could not be convicted on the count 'proved under Section 161, I.P.C. but must have been acquitted in entirety.

4. The State has preferred this appeal from this incomprehensible acquittal and I shall examine the sufficiency of the two grounds on which this acquittal has been rested by the learned Sessions Judge.

Point 1: --In regard to Ex. P. 4, the following facts should be borne in mind. On 27-7-1950, the General Manager, Mr. K. R. Ramanujam has passed the following order:

'South Indian Railway.

Office of the General Manager, (Anti-Corruption), Tiruchirapalli, 27-7-1950

Confidential

No. G/CB/PTJ/2

The Superintendent of Police, Special Police Establishment, Madras.

Case against G. Sadagopan, Establishment Head Clerk, Office of the District Engineer, Podanur -- Sanction order of prosecution. Your letter No. BI. 1861/50 of 12-7-1950.

By virtue of the authority vested in me by the Government of India under Section 6(c), Prevention of Corruption Act, 1947 (Act 2 of 1947), I, Sri K. R. Ramanujam, the General Manager, South Indian Railway, Tiruchirapalli, applied my mind before giving sanction for initiation of the prosecution against the accused after considering all the facts and circumstances of the case and hereby sanction the initiation of criminal proceedings against G. Sadagopan, Establishment Head Clerk, Office of the District Engineer, Podanur (an employee of the South Indian Railway X X ) who is alleged to have been in the habit of receiving bribes and on 1-5-1950 to have demanded and accepted Rs. 30/- from one K. R. Rajagopal, a gangman to transfer him from Udumalpet to Potianur and thereby committed an offence punishable under Section 5(2) read with Section 5(1) (a) of Act 2 of 1947 and Section 161, I.P.O.

(Initialled) K.R.R.

General Manager

Copy forwarded to the G. E., TPJ for information in continuation of this letter No. G/CB/-PTJ/2, dated 10-5-1950

(Initialled) K.R.R.

General Manager'

The copy of the order received by the Special Establishment of Police, Madras, got lost and there is no dispute as frankly conceded by the learned counsel for the accused, Mr. Basi Reddi, about the truth of this allegation. Therefore, the Special Police Establishment. Madras, secured the original office copy of the order & it is exhibited as P. 4. Once again, there is no dispute that this Ex. P. 4 coming from proper official custody and proved through P. W. 4, the confidential clerk attached to the Anti-Corruption section of the Manager's office, South Indian Railway, is the genuine original office copy. P. W. 4 testified that Ex. P. 4 is the order sanctioning prosecution of the accused and he was not cross-examined in the first instance and subsequently in the further cross-examination he has testified: 'The sanction was given after perusing all relevant papers. I know the signature of the General Manager. He has signed (it ought to have been initialled) Ex. P. 4'.

Therefore the only point for determination is whether this Ex. P. 4 can be accepted as secondary evidence, Section 65, Evidence Act deals with cases in which secondary evidence relating to documents may be given. The instant case falls under Sub-clause (c), viz., when the original, which is practically a copy here, has been destroyed or lost. The section proceeds to state that in cases falling under Clause (c) any secondary evidence of the contents of the document is admissible. It is only in the cases falling under Clause (e) or (f), with which we have now nothing to do here, a certified copy of the document, but no other kind of secondary evidence is admissible. The best kind of secondary evidence has been produced in this case, viz., paradoxically the original. In --'Sevugan v. Raghunatha : AIR1940Mad273 , Varadachariar J. (as he then was) pointed out that where according to the official practice a book (we may add a file of papers) is maintained containing the copies of the communications sent, the book of copies thus maintained is itself an official register. within the meaning of Section 35 and a public document within the meaning of Section 74, Evidence Act. The decisions of this Court in 'A. S. No. 261 of 1925 (B)' and in -- 'Navaneetha Krishna Thevar v. Ramaswami Pandia', AIR 1918 Mad 889 (C) were relied on. There is no substance therefore in the conclusion of the learned Sessions Judge that Ex. P. 4 cannot be accepted as satisfactory secondary evidence.

5. Incidentally, it seems to have been argued before the Assistant Sessions Judge and it was mentioned before me that the sanction order is defective in the light of the decision in --'Gokulchand Dwarkadas v. The King , in that it does not show that the General Manager had applied his mind to the facts in issue and granted the sanction. I have purposely re-produced the order of the General Manager and also the testimony of P. W. 4 in cross-examination. There is no dispute that for this prior sanction no type-design form or particular of words has been prescribed. Therefore, in accordance with common sense and the requirements of justice all that the order of sanction must show is that all relevant materials were; placed before the authority sanctioning the prosecution and that the authority considered those materials and the order sanctioning prosecution resulted therefrom. The sanction need not set out the reasons for the sanction because if the Legislature had intended it, it would have added the appropriate form of words. The object of this sanction is nothing more than to ensure the discouragement of frivolous, doubtful and impolitic prosecution. Therefore, applying these tests we find that the sanction order reproduced above complies with all the requirements of a valid sanction. In other words, the sanction in this case fully complies with the requirements laid down in the decision of somasundaram J. in -- 'Subba-rao v. The King', AIR 1949 Mad 710 (E) and Chandra Reddi J. in -- 'Shah Vajanji Kasturchand v. King', : AIR1950Mad450 (P). The sanction order in this case is Irreproachable.

6. Point 2: The learned Sessions Judge has entirely overlooked that the charge framed in this case is a composite charge. It is an admixture of the various elements constituting by themselves separate minor offences and which by such mixture make out an aggravated offence. In other words, criminal misconduct under Section 5, Prevention of Corruption Act is an amalgam of bribe-taking plus habitually doing so. Therefore, the charge when analysed into component parts is made up of an aggravated offence consisting of several particulars and on a resolving of the same several complete minor offences. In such a case Section 238, Cri. P. C., is clearly applicable and it has been so applied in not dissimilar circumstances by Govinda Menon and Basheer Ahmed Sayeed JJ. in -- 'Raman Ambalani v. State', : AIR1951Mad258 (G). Of course this is subject to two limitations, viz., the complete minor offences put together should not exceed three and must have been committed within a space of 12 months from the first to the last of such offences; and secondly, that no prejudice should have been caused to the accused by the course taken in the trial Court. In this case the three complete minor offences of the same kind have all been committed within the space of 12 months as laid down in Section 234, Cri P. C. and no prejudice is made out or is apparent from the record. Therefore, the learned Sessions Judge was wrong in finding that when the accused got acquitted under Section 5(2), Prevention of Corruption Act, he should have been acquitted in entirety and could not have been convicted for a complete minor offence.

7. In the result, the acquittal by the learned Sessions Judge is set aside and inasmuch as the appeal was not heard on merits, it is remanded to be taken on file and disposed of afresh on merits and according to law by the Sessions Judge, or by the Additional sessions Judge, other than the Sessions Judge who has so unsatisfactorily disposed of this case.